On the importance of nomenclature: "Surveillance state" or "police state"

Sandy Levinson

I find it extremely interesting that the term "surveillance state," which Jack and I first used in our own writing about half a dozen years ago--and I am positive we were not the first--has apparently entered into ordinary discourse. Thus the New York Times, in its story today about Edward Snowden, writes that

he said he had been selective in what he disclosed, releasing only what he found to be the greatest abuses of a surveillance state that he came to view as reckless and having grown beyond reasonable boundaries.... 'If you realize that that’s the world you helped create and it is going to get worse with the next generation and the next generation and extend the capabilities of this architecture of oppression, you realize that you might be willing to accept any risks and it doesn’t matter what the outcome is,' Mr. Snowden said.

Even more interesting in this regard is Ross Douthat's column in yesterday's Times, which not only uses the term "surveillance state," but also goes on to include the following remarkable paragraph:

For us, the age of surveillance is more likely to drift toward what Alexis de Tocqueville described as “soft despotism” or what the Forbes columnist James Poulos has dubbed “the pink police state.” Our government will enjoy extraordinary, potentially tyrannical powers, but most citizens will be monitored without feeling persecuted or coerced.

So my question for the day is this: Why has "surveillance state" apparently become so widely accepted as a "neutral" term describing the present United States (and, no doubt, other countries as well, and perhaps all that have the technological capacity), while "police state," even if modified by "soft" or "pink" or, to adopt an adjective from the 18th century referring to one type of despot, "benevolent," still presumably raises all sorts of hackles and undoubtedly would generate accusations of ideological shrillness (perhaps like using "constitutional dictatorship" to refer to at least aspects of the American system, even if most of it these days is dysfunctional and incapable of any cogent action regarding many of our most crucial challenges)?

I'm far more interested in the question of nomenclature than of debating the propriety of Mr. Snowden's actions. One might believe that it is and should be a criminal offense to disclose the secrets of a surveillance or police state. That's for another discussion. I simply want to know how the contemporary United States is best described by people seeking to understand the nature of the political regime (which is far more important in many respects, obviously, than the contingent identity of the person who happens to occupy, perhaps like the Wizard of Oz, the White House.

To me, a "police state" is one in which you fear your door will be broken down at midnight and you will be "disappeared".

A "surveillance state" gives me the image of a 17th C Puritan village: every thing you say or do will eventually be known and judged by your neighbors. It's a true panopticon, both in the Bentham sense and the Foucault sense.

Americans have a well-formed understanding of the police state as a government similar to Nazi German or the communist USSR combining surveillance and the Gulag to persecute enemies of the state. Our understanding of the NSA meta-data mining does not occupy the same universe.

Your coined term surveillance state is a more accurate description of this form of intelligence gathering and does not (yet) share the totalitarian connotations of a police state. NSA would have to cross the Rubicon of targeting political opponents of the government for persecution by our security services before those connotations are likely to arise.

The usage of "police state" automatically connotes an anti-police mentality that most people don't have, whereas the use of "surveillance state" has no such baggage and is therefore neutral and acceptable. What is tragic is that the DNA for domestic insurrection and endless foreign war, both of which lead to state tyranny - however the populace may feel comfortable labeling it at any given historical moment - is built in to the Constitution itself: namely, the Second Amendment and the constitutionally-permissible synergy between the military industrial complex and the underclass.

The only real way to end these constitutional engines of violence and ensuing paranoia is through the constitutional amendment process (see www.tyrannydissolution.wordpress.com/about )Absent constitutional reform, the political regime itself can be described as nothing more than a series of reactions and counter-reactions to constitutionally-permissible violence and violence preparation on the part of the Wizard of Oz in the White House, along with the millions of government employees, civilian and military, who receive the most stable paychecks they've ever known from said constitutional inanity.

How about listing futuristic books written and movies that have been made describing surveillance and police states? Is that future close at hand?

By the way, on yesterday's "This Week with George S." guest panelist Paul Krugman on this subject made reference to all the TV shows that provide examples that Big Brother is listening in. Also, Krugman made reference to an excellent Jack Balkin article about 5 years ago on the loss of privacy with the current technology. Maybe Jack will post on this.

One we define, with some precision I hope, what constitutes a surveillance state, we might then consider how such may shift into a police state. Might this result in clashes between the First and Second Amendments? Is the surveillance state a slippery slope?

"A "surveillance state" gives me the image of a 17th C Puritan village: every thing you say or do will eventually be known and judged by your neighbors. It's a true panopticon, both in the Bentham sense and the Foucault sense."

More like, that will happen if the authorities have some reason to dislike you. If they don't, you'll have a reasonable simulation of privacy. But you'll be aware that it's important the authorities like you.

Bartbuster: ISAD.

"I was thinking more of Argentina or Stalinist Russia."

Granted, the way we do it here, the next of kin at least have closure.

"NSA would have to cross the Rubicon of targeting political opponents of the government for persecution by our security services before those connotations are likely to arise."

This is why I've been reminding you of your broad reading of Presidential powers under the Commander in Chief clause: such a reading leaves nothing but the goodness of the Executive guarding against such misuse. If the legislature and the judiciary cannot check the Executive in that area then it's an invitation to use that power in an abusive way. Remember Nixon claimed that some of his surveillance of political critics was done in the name of security of the state.

FISA, which you've said should be held unconstitutional, would prevent and/or provide remedies for, the abuses you are talking about.

Congress has multiple checks on the executive including the power of the purse, the power to create supervising departments like the IG, the power to subpoena the testimony of executive officers and the power of impeachment.

What Congress may not do is exercise the President's CiC power to direct the activities of the NSA or any other national security department.

The surveillance state and the police state are governmental. But what about non-state surveillance, especially via the Internet and social networking? Do participants voluntarily accept such non-state surveillance despite privacy requirements that may be breached by non-states? Does the information age doom privacy as a practical matter, especially for national security reasons? Mike Dorf has two interesting posts at his blog on privacy, including some political aspects, lumping liberals and libertarians as being for privacy as opposed to traditional conservatives. Do strange bedfellows give up privacy? Maybe it's time to bring back loyalty oaths. The brouhaha-haha will bring about full employment for comedians.

[Note: This is a serious matter that unfortunately will not be fully addressed and will result in further political gridlock.]

What do you mean by this? In the recent debate over Gitmo closing you said that even if Congress cut funding for moving the Gitmo prisoners the President under his Commander in Chief clause powers can simply use other funds to do what he thinks is proper in exercising his powers. Why wouldn't the same apply here?

" the power to create supervising departments like the IG"

Doesn't this suppose some standard under which to supervise? I thought the President had the power under CiC to direct this activity as they see fit to prosecute our wars.

But in debating Gitmo you said that if Congress were to specifically defund anything related to moving the prisoners the President would have the power to simply use other appropriated funds as he sees fit in exercising his CiC powers to detain enemies. Similarly, why couldn't the President simply use other appropriated funds to carry out his intelligence gathering powers, over which you've argued he has sole authority under the CiC clause?

Prof. Anita Allen has a book, "Unpopular Privacy: What Must We Hide?," that argues that privacy is so important, so essential to our system of government, morality and so forth, that it can be secured in certain cases even if unpopular. This includes when private parties are the one's threatening privacy.

Congress passed an amendment that ordered the President not to spend any operating funds of any kind to bring POWs from Gitmo to the United States. I merely observed that this amendment is an unconstitutional attempt by Congress to assume CiC powers.

Congress decides how much money (if any) to spend on detaining civilian criminal defendants and prisoners of war.

Congress does not have the CiC authority to decide which captures are civilian criminal defendants or prisoners of war and at which detention centers they should be held.

"hat privacy interest does not extend to third party meta-data records of the fact of an exchange of content.

That privacy interest does not extend to content we provide to third parties knowing they can and do share the content "

As far as the government goes, why not have them have to secure a warrant before they can get to these (apart from cases where the third party consents to give the government the data on their end, even here I'd be wary of how much the government leans on them to do so).

Mr. W: Congress can't, in keeping with the Constitution, defund a particular detainment site but can defund a particular intelligence gathering computer?

Congress can defund any line item it wants, including specific detention centers. What Congress cannot do is direct the President to detain specific captures in specific funded detention centers.

BD: "that privacy interest does not extend to third party meta-data records of the fact of an exchange of content. That privacy interest does not extend to content we provide to third parties knowing they can and do share the content "

Mr. W: As far as the government goes, why not have them have to secure a warrant before they can get to these

There is nothing preventing the government from establishing higher standards for searches than required under the 4th Amendment.

I simply have not seen a compelling policy argument to require a warrant for obtaining non-content meta-data.

Meta-dating mining is used to identify probable cause to obtain search warrants. If you require an individualized search warrant before engaging in meta-data mining, then you have effectively prohibited this type of surveillance.

The argument folks likePaul and Greenwald give for foregoing the meta-data mining tool boils down to telecom business records ought to be private because the government could use them to commit unspecified abuses.

The abuses leakers like Snowden offer go beyond the actual meta-data to hypothetical violations of the Fourth Amendment like warrantless surveillance of the content of private communications by rogue government employees or contractors.

I am unwilling to give up the meta-data mining tool until someone can identify a likely actual abuse arising from meta-data collection.

"Congress can defund any line item it wants, including specific detention centers. What Congress cannot do is direct the President"

To make sure I understand your position: if there were a Democratic congress so inclined during W Bush's administration that wanted to close Gitmo they could have simply defunded all monies to detainment equipment, facilities and services there?

"I simply have not seen a compelling policy argument to require a warrant for obtaining non-content meta-data."

Well, as you note it amounts to a search without even probable cause. Isn't that kind of thing what the Founders wanted to prevent, a kind of digital general warrant?

" until someone can identify a likely actual abuse arising from meta-data collection."

Haven't you suggested one yourself (an administration using this technique against their political opponents of to further their political goals)?

FWIW, I most closely fit the category of classical liberal of the 19th century American variety, but have to use the modern terms libertarian and conservative because the left has so bastardized the term liberal over the past century to mean progressive.

I part from the libertarians in their isolationism and some of their more anarchistic positions.

I part from the conservatives in most of their moral authoritarianism with the exception of abortion. People should be free to live their lives as they wish unless they are harming others.

BD: "Congress can defund any line item it wants, including specific detention centers. What Congress cannot do is direct the President"

Mr. W: To make sure I understand your position: if there were a Democratic congress so inclined during W Bush's administration that wanted to close Gitmo they could have simply defunded all monies to detainment equipment, facilities and services there?

You appear to have it, by George!

BD: "I simply have not seen a compelling policy argument to require a warrant for obtaining non-content meta-data."

Mr. W: Well, as you note it amounts to a search without even probable cause. Isn't that kind of thing what the Founders wanted to prevent, a kind of digital general warrant?

The Fourth Amendment bars unreasonable searches, not all searches. To be unreasonable, the government has to search something in which you have a privacy interest. You do not have a privacy interest in telephone business records of meta-data.

The FISA warrant for the NSA is a kind of digital general warrant.

This would be an unconstitutional warrant if the government search of telephone company business records was an unreasonable search under the Fourth Amendment, which it is not.

The FISA general warrant is a creation of Congress, not a requirement of the Fourth Amendment, and arguably an unconstitutional assumption of the President's CiC powers.

Mr. W: Haven't you suggested one yourself (an administration using this technique against their political opponents of to further their political goals)?

How can meta-data collection or the analysis of that data looking for relationships and patterns be used against political opponents of an administration? I was talking about situations where the NSA is using its powers to hack, obtain content from and perhaps sabotage the computer records of political opponents.

" Congress has multiple checks on the executive including the power of the purse, the power to create supervising departments like the IG, the power to subpoena the testimony of executive officers and the power of impeachment."

And please note that in the case of secret programs, those measures fade into nothingness or a close approximation.

"How can meta-data collection or the analysis of that data looking for relationships and patterns be used against political opponents of an administration?"

Come on, Bart, you're not that stupid. You carry a cellphone with you, that metadata is like a tracking record of where you go, as you cross from one cell to the next. Might as well have one of those GPS trackers installed in your butt.

Admittedly, most uses of the meta-data against political foes assume the foes have done something illegal, and you just have to find it. But that is trivially true in a nation with so many laws, and the legal norm of malium in see dead.

BD: "How can meta-data collection or the analysis of that data looking for relationships and patterns be used against political opponents of an administration?"

Brett: You carry a cellphone with you, that metadata is like a tracking record of where you go, as you cross from one cell to the next. Might as well have one of those GPS trackers installed in your butt. Admittedly, most uses of the meta-data against political foes assume the foes have done something illegal, and you just have to find it.

Are you saying that you are worried about NSA using cell phone records to track political foes to someplace they should not be, say a mistress or a drug transaction?

Wouldn't it be far more effective simply to have a PI legally follow the known political opponent so you have someone on the scene to video or photograph the target flagrante delicto?

Cell phone tracking is more useful if you are attempting to find an unknown target in a secret group.

BD: "Congress has multiple checks on the executive including the power of the purse, the power to create supervising departments like the IG, the power to subpoena the testimony of executive officers and the power of impeachment."

Barry: And please note that in the case of secret programs, those measures fade into nothingness or a close approximation.

An IG would have access to the program or could follow the funding and equipment to some illegal site. If they are blocked, the IG raises a stink with Congress.

I did a little digging into this Blog's Archives and noted Marty Lederman's Dec. 31, 2006 [well prior to the surfacing of the Bush/Cheney Great Recession of 2008] post: "Judge Posner and 'Ad Hoc Initiatives' (i.e., Presidentially Sanctioned Felonies)" where I put up this comment:

"Before Congress debates this issue, Americans must have more information in order to determine the extent to which their civil rights may be threatened by Posner's suggested amendments to FISA. Posner's views suggest "self help" and "self defense" as bases for these changes. I would recommend a reading of "Chatter, Dispatches from the Secret World of Global Eavesdropping" by Patrick Radden Keefe (Random House, 2005) for an understanding of the technological capabilities involved. It is scary enough that the technology exists, but even scarier that individuals will construe what the technology spits out on a random basis. Might as well install a Lojack type device in every American to monitor his/her movements and actions.# posted by Shag from Brookline : 10:00 AM"

"Mr. W: To make sure I understand your position: if there were a Democratic congress so inclined during W Bush's administration that wanted to close Gitmo they could have simply defunded all monies to detainment equipment, facilities and services there?

You appear to have it, by George!"

I'm not sure I see a difference that makes a difference between Congress saying the Executive may not detain prisoners at Gitmo and Congress defunding all areas of Gitmo related to detainment of prisoners. Or to use the example of what happened, why couldn't Congress defund any operations involving moving prisoners from Gitmo to stateside facilities? Could they get the same result by simply defunding any operations in stateside facilities involving detainment of WOT prisoners?

"How can meta-data collection or the analysis of that data looking for relationships and patterns be used against political opponents of an administration?"

"You do not have a privacy interest in telephone business records of meta-data."

You seem to answer both of these points when you later say "Are you saying that you are worried about NSA using cell phone records to track political foes to someplace they should not be, say a mistress or a drug transaction?

Wouldn't it be far more effective simply to have a PI legally follow the known political opponent so you have someone on the scene to video or photograph the target flagrante delicto?"

Here you concede that it COULD be used in ways that implicate one's privacy and/or targeting of political opponents, you just claim it's not as effective as other ways. Nevertheless there it is, one can have a privacy expectation in such things and once that's conceded we usually require at least probable cause and, in general, a warrant (and not a general one) for such searches.

Mr. W: To make sure I understand your position: if there were a Democratic congress so inclined during W Bush's administration that wanted to close Gitmo they could have simply defunded all monies to detainment equipment, facilities and services there?

BD: You appear to have it, by George!"

Mr. W: I'm not sure I see a difference that makes a difference between Congress saying the Executive may not detain prisoners at Gitmo and Congress defunding all areas of Gitmo related to detainment of prisoners.

The end result may be the same, but the former is a proper exercise of the Article I spending power while the latter is an unconstitutional exercise of the President's plenary Article II CiC power.

Mr. W: Or to use the example of what happened, why couldn't Congress defund any operations involving moving prisoners from Gitmo to stateside facilities? Could they get the same result by simply defunding any operations in stateside facilities involving detainment of WOT prisoners?

Under its budget authority, Congress may indeed decide to fund or not to fund detention operations. However, Congress does not have the authority to direct the President to designate certain captures as military POWs rather than civilian criminal defendants or designate where the President may house the captures within the detention system.

Mr. W: "Here you concede that it COULD be used in ways that implicate one's privacy and/or targeting of political opponents, you just claim it's not as effective as other ways."

Many things in life are theoretically possible.

It is theoretically possible that a Democrat in the Army could take a tank and shoot up the RNC building while yelling: "Yes we can!" I do not find the probability of such an attack justifies prohibiting the Army from using tanks, though.

BD: "Wouldn't it be far more effective simply to have a PI legally follow the known political opponent so you have someone on the scene to video or photograph the target flagrante delicto?"

Brett: They might notice that, as well as it being logistically infeasible if you have as many enemies as Obama apparently does.

:::chuckle:::

This is not an insurmountable problem for The One.

Following the Alinsky power principle of "pick the target, freeze it, personalize it, and polarize it,” Team Obama attempts to make one or two people the face of the political opposition and then personally destroy those people to discredit the entire movement.

identifies himself and our SALADISTA (FKA our yodeler) but who are the so many apparent additional ones? Might the results of the 2012 Presidential election provide a hint? Of course, Obama got a majority in 2008 AND 2012, something that George W. failed to accomplish.

By the Bybee [expletives deleted], it's good to see that our dyslexic duo, Brat and Bert, "kissed and made up" after their libertarian spat, as the former gave the latter his signature "colon chuckle":

"Congress does not have the authority to...designate where the President may house the captures within the detention system"

Why not? Couldn't they just defund parts of the system they don't want him to house them in?

"Let's stick with the probable."

You're defending a massive trawling general warrant program operating sans probable cause and you're telling me to stick with the probable?

The Founders thought it probable generally that govermental powers could be used for abuse, it's why they put general checks on them. One of those checks were that the federal government can't engage in general searches lacking specific warrants or probable cause. Even you've conceded there could be a privacy interest or way to abuse this program for political purposes. Unchecked power in that area, This is what our Founders were worried about.

I also note with some amusement that you referred to "the President's plenary Article II CiC power". I realize it's a bit of a term of art but couldn't help thinking of your recent complaints re: Ceasarism contrasted with your defense of "plenary Article II CiC power" (as plenary is literally defined as "absolute, unqualified" http://www.merriam-webster.com/dictionary/plenary )

BD: Congress does not have the authority to...designate where the President may house the captures within the detention system

Mr. W: Why not?

No Art I power.

Couldn't they just defund parts of the system they don't want him to house them in?

Congress can completely shut down any facility they want by defunding it.

Congress cannot say that the President cannot lock up Shag in a certain facility.

Mr. W: I also note with some amusement that you referred to "the President's plenary Article II CiC power". I realize it's a bit of a term of art but couldn't help thinking of your recent complaints re: Ceasarism contrasted with your defense of "plenary Article II CiC power"

Caesarism is the President exercising Congress' plenary powers. Flip side of the same separation of powers coin.

You noted that the Founders implemented a series of checks and balances to preserve liberty. Separation of powers is one of the major checks.

"Congress can completely shut down any facility they want by defunding it.

Congress cannot say that the President cannot lock up Shag in a certain facility."

Can it completely defund specific parts or services at the centers?

"Caesarism is the President exercising Congress' plenary powers. Flip side of the same separation of powers coin.

You noted that the Founders implemented a series of checks and balances to preserve liberty. Separation of powers is one of the major checks."

True, but separation of powers involves somewhat concurrent delegation of powers (for example, Congress has Art. I powers to make rules and regulation to govern the armed services while the President has Art. II powers over them as Cic). I'm not sure you're recognizing this. Perhaps more importantly, separation of powers are not the only restrictions placed on our government, there are Constitutional provisions which are simply restrictions on government action regardless of the branch seeking to violate them. In this case the Fourth Amendment was supposed to restrict searches without probable cause such as you've described here.

"Congress cannot say that the President cannot lock up Shag in a certain facility."

with double negatives suggesting that perhaps:

"Congress can say that the President can lock up Shag in a certain facility."

Query: Is this based on the Necessary & Proper Clause?

Note: Obama just might veto such suggested action by Congress as unnecessary since he has the proper CIC drone power to get me in my current facility, according to our SALADISTA's claim of Obama's Ceasarist-In-Chief powers.

By the Bybee [expletives deleted], is our SALADISTA behind the North Colorado Secession Movement?

Mr. W: True, but separation of powers involves somewhat concurrent delegation of powers (for example, Congress has Art. I powers to make rules and regulation to govern the armed services while the President has Art. II powers over them as Cic). I'm not sure you're recognizing this.

Giving both Congress and the President the same power would obviously lead to a political standoff and the Constitution does not make this mistake. Most powers are plenary. In the few cases of concurrent powers (such as regulation and discipline of the military), the specific delegation of the power takes precedence over the general.

Finally, we have spent enough time playing your "what about this hypo" game concerning the President's CiC powers. If you have an alternative take from mine, just offer it by George!

thankfully does not include his signature "Colon Chuckle" but a semi-colon variation insert, suggesting a less invasive test that Obamacare may not cover. Nathaniel West's "The Dream World of Balso Snell" comes to mind., a trip I would recommend for our SALADISTA.

The Epstein note offers a non-sequitor when he argues that, because the Militia Clause gives Congress and not the President various powers over the state militias, the President's plenary power as CiC to direct intelligence gathering either does not exist or may be circumscribed by Congress. Then Epstein leaves the Constitution's text altogether to parse the Federalist commentaries.

This is not a difficult question and applying basic rules of statutory construction to the Constitution clears up any confusion pretty quickly.

Art II makes a general grant of CiC power to the President.

Art I makes specific grants of a subset of CiC powers to Congress.

The specific takes precedence over the general.

Thus, in the areas where Art I makes specific grant of CiC power to Congress, Congress has a superior power to the President and the President may only act in the absence of Congress' exercise of those powers.

The President enjoys plenary CiC power over all other areas such as intelligence gathering.

For me, (and for Epstein) it is enough to argue "in dealing with the last provision, most analysis stops after the phrase “the Army and Navy” of the United States, and ignores the role and position of the militia. Even truncated in this fashion, I think that thecommander in chief clause does not authorize the claim of inherentexecutive power that allows the President, within the domain of military and intelligence activities, to disregard general rules found in either treaties or statutes. The claim that the President has a commander inchief “power” (even though the term is not used in this connection) is inconsistent with the two dominant principles of constitutional interpretation: separation of powers and checks andbalances. The former principle cannot survive if both the Congress and the President receive the identical power to make rules to govern and regulate the armed forces. That power is given explicitly to the Congress. It cannot be given implicitly to the President, except on pain of contradiction. Yet at the same time, the principle of checks and balances is at work here.The power to make general rules is checked in effect by the inability of Congress (given the vesting clause) to oust the President from office, or from his role of commander in chief."

He goes on to discuss what he sees as the implication of the Militia Clause, properly read, fits better with this reading of the division of Congressional and Presidential authority here. His discussion of the Federalist has the same aim.

Epstein: "in dealing with the last provision, most analysis stops after the phrase “the Army and Navy” of the United States, and ignores the role and position of the militia. Even truncated in this fashion, I think that the commander in chief clause does not authorize the claim of inherent executive power that allows the President, within the domain of military and intelligence activities, to disregard general rules found in either treaties or statutes."

The former has nothing to do with the latter.

The Founders wanted Congress and not the President to decide when to go to war and provided Congress with three powers in this area - the power to declare war, the power to finance the war and the power to call up the primary ground forces of the era, the state militias.

None of this circumscribes the President's CiC power over the force Congress provides. The Federalist 69 quoted by Epstein is quite clear on this division of powers:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.

I think you missed the hear of that paragraph. I think it is this: "The claim that the President has a commander inchief “power” (even though the term is not used in this connection) is inconsistent with the two dominant principles of constitutional interpretation: separation of powers and checks andbalances. The former principle cannot survive if both the Congress and the President receive the identical power to make rules to govern and regulate the armed forces."

His subsequent analysis of the militia clause, and what he sees as it's tri-parte division of powers (between Congress, the President and the states) is pointing to additional evidence that this is how delegations of powers to the President during war time are structured in the Constitution, manifesting and fitting with the overarching themes of separation of powers and checks ad balances.

Perhaps another timely example helps make what I take to be Epstein's point: Congress can lay down general rules, for example like those in the UCMJ, which proscribe certain conduct which we might call torture of captured enemies. The President cannot, relying on his CiC powers, direct the armed forces to engage in these prohibited acts. However, under his powers he can otherwise direct interrogation programs (for example, directing them to focus their activities towards certain goals/priorities over and above others).

Likewise Congress can lay down rules prohibiting certain intelligence gathering activity, but of course the President may still direct intelligence activity within those bounds.

It comes from the same place as the UMCJ rules, Article I Sec. 8 power to make rules for the government and regulation of the armed forces.

Just as the Executive can't complain that the UMCJ unconstitutionally invades his CiC powers in the area of interrogations, where those measures circumscribe what he can direct the armed forces to do regarding interrogations, he can't complain about Congressional measures circumscribing what he can do in intelligence gathering (of course interrogations can be said to be a subset of intelligence gathering).

Even were we to concede your argument that "the term "regulate" when applied to the military simply meant to discipline the force" (and I don't concede this, the same term is used differently than that limited reading several other times in Article I alone) this is no problem for my reading, as the ultimate goal of the rules for government and discipline are not themselves enumerated. The UMCJ has plenty of provisions that make more sense when read to providing rules for members of the military aiming to defend certain moral values than simply to maintain good order (for example, note the Miranda type requirements of Article 31).

"Choosing which legal interrogation techniques it prefers has nothing to do with maintaining the good order and discipline of the force."

Wait, now after all your references to the UCMJ are you saying that the restrictions on interrogation techniques found there are unconstitutional?

Initially, I repeat that I don't think that the clause in Art. I, Sec. 8 has to be read as restricting Congress' authority to make rules for the armed forces to rules that aim to establish 'good order and discipline.' This is so for textual reasons (the phrase "regulation" is used several times in that Article alone to mean something other than simply 'impose good order on'). It's also true for conceptual reasons; in many cases it is going to be exceedingly difficult, if not impossible, to conceptually separate rules that are purely for 'good order' and rules that are there to prohibit morally condemned acts. You seem to recognize this, albeit unwittingly, with the rather hilarious line:

"Prohibiting malum in se warcrimes falls within Congress' power to maintain the good order and discipline of the force."

It stretches credulity to think that war crimes are forbidden to our troops not because they are universally condemned and antithetical to our values but because they might cause the troops to be less amenable to efficient command.

Of course, we don't have to go that far. As I noted who in the world would like to argue that the provisions in Article 31 of the Code have a more believable connection to 'maintaining good order' among the corps than they do a foundation in our concepts of fair investigatory practices? Article 31 is an important provision for our discussion (which I'm quite enjoying btw, thanks for your end of it): it certainly limits what the President can decide to do in commanding interrogation policy, it doesn't seem to have any credible connection to 'good order', but it surely is composed of 'rules for the government* and regulation of the armed forces' (it certainly lays out, or 'governs', how a military activity, interrogations, must be carried out).

So, does this intrude onto the President powers as Commander in Chief? No. The President may not, in contravention of the UCMJ, order troops to engage in interrogation techniques forbidden by it. But he can order interrogations be focused on the matter of al Qaeida's whereabouts rather than, say, ties to Iraq or Iran.

He still acts as the Commander in Chief. Much like a prosecutor (tellingly, an executive) has to work within the laws passed by legislatures but can still direct their execution (deciding where officers should focus current efforts, prioritizing some prosecutions over others, etc) so too can the CiC do the same in directing troops to prosecute wars (which Congress declare or authorize).

Don't go all Obama on me. The phrase "antithetical to our values" is meaningless.

Efficient command is only one element of good order and discipline. Not committing mallum in se crimes against civilians and enemy captures is another.

UCMJ rules for investigating crimes by military members similarly advance good order and discipline of the force and enforce constitutional due process rights. .

A criminal prosecutor enforcing the UCMJ against an American service member with due process rights is not at all analogous to a military commander gathering intelligence from foreign enemy captures without any due process rights.

The prosecutor is enforcing the good order and discipline of the force under the constraints of the Bill of Rights, while the commander is gathering intelligence.

The former falls under Congress' power to regulate the military, the latter does not.

"UCMJ rules for investigating crimes by military members similarly advance good order and discipline of the force and enforce constitutional due process rights."

You've essentially given up the game when you fold prohibitions of malum in se offenses and upholding constitutional values into the concept of "good order and discipline," especially so since what we are talking about is intelligence gathering that can reasonably be thought to infringe on Americans constitutional values (the entire topic here has been the NSA domestic surveillance program). If the Congress can mandate that military interrogations comport with our Fifth Amendment values they can mandate that our intelligence gathering comport with our Fourth Amendment values.

Thanks Joe, I enjoy the debate found here, and I appreciate the contributors who make comments open. Speech and debate should be valued in practice, not just theory.

One of the best things about these open comments are the great articles that you (and others, I've read articles noted by Shaq and others too) find and note for us. I recently read the Maryland advisory opinion on marriage recognition you posted, a very informative read. Thanks for bringing our attention to things like that!

I'm in the process of recycling hundreds and hundreds of downloads to avoid being committed as a hoarder. I check titles, authors, etc, saving, so far, very few. In the course of recent efforts, I came across Jack Balkin and Sandy Levinson's 2006 Fordham Law Review article "The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State" available at SSRN:

http://ssrn.com/abstract=930514

I feel compelled to reread this article before putting it in the recycle bin to see how Jack and Sandy looked at the surveillance state in 2006 and compare it to what the surveillance state looks like today. The surveillance state will not soon disappear, if ever. At 82 I probably won't live long enough to see if it segues into a police state. Hopefully there will be a real debate.

Justice Stevens' June 14th talk is a good read, especially on the original Constitution (and Justice Thurgood Marshall's critiques) and on the 14th Amendment (and the SlaughterHouse and Cruikshank cases impacts thereon). I recommend Joey Fishkin's short (8 pages) article "The Dignity of the South" at the Yale Journal Online for which he provides a link in his post preceding this post. I have not read the other articles he links to for lack of time. But Fishkin does a great job of identifying post-1868 racial issues, some of which continue to this day.

As to fetishes, perhaps I have a futuristic 2017 fetish when at my birthday celebration I hope to emulate Abe Lincoln about "Four Score and Seven Years Ago" in my life. Regarding my 1868 fetish, go through the comments at Concurring Opinions on whether race matters. Fishkin well demonstrates how race still matters, including with Shelby County.

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